Herren Associates, Inc., ASBCA No. 62706

Background

Contract N00178-04-D-4062: IDIQ awarded 2004; Task Order NS01 awarded to Herren on Feb. 12, 2009 for services through Apr. 11, 2014. Task order B-2 set fixed fees payable as hourly rates (with up to 85% paid during performance).
On first day of performance (Feb. 12, 2009) the government provided a staffing matrix adding more senior personnel not in Herren’s proposal; Herren alleges it requested an equitable adjustment then but produced no record of any CO request or response.
Herren submitted a certified claim on Sept. 19, 2019 seeking an upward adjustment to the fixed-fee hourly rates for labor performed years earlier (Herren admits all contested hours were performed before Sept. 19, 2013). CO denied that claim in a July 27, 2020 final decision.
Herren later amended its claim (Apr. 27, 2020) seeking reimbursement for rented office space for March 16, 2009–July 23, 2010; Herren never invoiced the government for those lease costs despite submitting numerous invoices during performance and admits it paid the rent by Apr. 27, 2014.
The contract referenced FAR 52.216-7 (Allowable Cost and Payment) and a contract clause requiring no more than a 30-day lapse between performance and submission of an interim payment invoice. The Board granted the government’s motion for summary judgment, holding Herren’s claims time-barred under the CDA six-year limitations period.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Accrual for increased fixed-fee claim (statute of limitations)	Herren: cost-reimbursement/final indirect-rate mechanics and B-2 permit waiting; claim could be brought later (effectively at closeout)	Government: liability fixed when the labor-mix changed/when higher-cost workers performed; accrual occurred in 2009 (or when the work was performed)	Time-barred: claim accrued well before Sept. 19, 2013; six-year CDA period elapsed
Accrual for leased-space cost claim (statute of limitations/invoicing)	Herren: contract did not require invoice timing for these direct costs; could bill at closeout	Government: contract required invoicing within 30 days of performance; Herren could and should have invoiced earlier but did not	Time-barred: accrual when Herren became obligated/paid rent (2009–2010); claim filed after six-year period
Do FAR 52.216-7, task-order B-2, or the Changes clause toll accrual?	Herren: FAR clauses and B-2 justify delaying claim until final payment/closeout or until final indirect cost determination	Government: those clauses do not toll the CDA limitations period; B-2 lists fixed hourly rates and contains no tolling language	Not tolled: clauses do not postpone accrual; they do not excuse a six‑year delay
Appropriateness of summary judgment	Herren: asserted disputes/contested facts (generally)	Government: submitted undisputed material facts showing accrual and non‑payment within six years	Summary judgment proper: no genuine issue of material fact; government entitled to judgment as a matter of law

Key Cases Cited

Anderson v. Liberty Lobby, 477 U.S. 242 (1986) (summary judgment standard; Board does not weigh evidence)
Mingus Constructors, Inc. v. United States, 812 F.2d 1387 (Fed. Cir. 1987) (conclusory denials insufficient to avoid summary judgment)
Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir. 2014) (burden on movant to establish statute-of-limitations defense)
FloorPro, Inc. v. United States, 680 F.3d 1377 (Fed. Cir. 2012) (actual knowledge not required for accrual; accrual when facts reasonably knowable)
United States v. Commodities Export Co., 972 F.2d 1266 (Fed. Cir. 1992) (only inherently unknowable facts postpone accrual)
Duhame v. United States, 135 F. Supp. 742 (Ct. Cl. 1955) (contractor cannot toll limitations by refraining from acts within its power, e.g., invoicing)
Triple Canopy, Inc. v. Sec’y of the Air Force, 14 F.4th 1332 (Fed. Cir. 2021) (accrual may depend on specific contract provisions; tolling is fact- and contract-specific)